Four Confirmation Fights That Shaped the Supreme Court

WASHINGTON — As Judge Neil M. Gorsuch prepares for his Supreme Court confirmation hearings, liberal groups are promising a furious fight that they say will rival the most memorable clashes over candidates to the nation’s highest court. Here is a look at some other major confirmations fights — and how they turned out.

Clarence Thomas: ‘A High-Tech Lynching’

President George Bush’s nomination in 1991 of Judge Thomas at first seemed to go smoothly. Some doubted Mr. Bush’s claim that race had not figured in his decision to name a second black justice to take the place of the first one, Thurgood Marshall, a civil rights hero. There were also questions about Mr. Bush’s claim that Judge Thomas, 43, was the best qualified candidate.

But the nomination did not run into serious trouble until journalists disclosed that Anita Hill, then a law professor at the University of Oklahoma, had submitted a confidential sworn statement accusing Judge Thomas of sexual harassment.

Judge Thomas issued vehement denials. “This is a circus,” he told the Senate Judiciary Committee. “It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves.”

The confirmation hearings riveted the nation but did not resolve the protagonists’ conflicting accounts. The Senate voted to confirm Justice Thomas by a vote of 52 to 48, the narrowest margin in more than a century.

Robert H. Bork: ‘An Intellectual Feast’

President Ronald Reagan’s nomination of Judge Bork in 1987 left a lasting mark on the confirmation process and gave rise to a new verb. Nominees rejected on grounds unrelated to their professional qualifications are to this day said to have been “borked.”

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Former President Gerald R. Ford, left, introduced Judge Robert H. Bork, center, to the Senate Judiciary Committee in September 1987.CreditCharles Tasnadi/Associated Press

Judge Bork was a former United States solicitor general, Yale law professor and groundbreaking antitrust scholar. But liberal groups and Democratic senators said his constitutional views were outside the mainstream.

Senator Edward M. Kennedy, Democrat of Massachusetts, described “Robert Bork’s America” as “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government.”

Judge Bork gave extended answers to the senators’ questions, in tones that struck some as candid and thoughtful and others as prickly and arrogant. Asked why he wanted to serve on the Supreme Court, he said: “It would be an intellectual feast just to be there and to read the briefs and discuss things with counsel and discuss things with my colleagues.”

The nomination was defeated by a 58 to 42 vote. That was the largest margin by which the Senate had ever rejected a Supreme Court nomination, and it was the last time the Senate voted down a Supreme Court nominee.

William H. Rehnquist: ‘An Unpopular and Unhumanitarian Position’

Chief Justice Rehnquist was confirmed twice, first as associate justice in 1971 and again as chief justice in 1986. Both times, he faced questions about a memorandum he had written as Supreme Court law clerk in 1952.

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Justice William H. Rehnquist, second from left, arriving at his Senate hearing in 1986 for confirmation as the chief justice.CreditPolaris

The memo was addressed to Justice Robert H. Jackson, was written in the first person and bore Mr. Rehnquist’s initials. It urged Justice Jackson to reject arguments made by lawyers in Brown v. Board of Education, the landmark school desegregation case, and to uphold Plessy v. Ferguson, the 1896 Supreme Court decision that said “separate but equal” facilities were constitutional.

“I realize that this is an unpopular and unhumanitarian position for which I have been excoriated by ‘liberal’ colleagues,” Mr. Rehnquist wrote in 1952, “but I think Plessy v. Ferguson was right and should be reaffirmed.”

Chief Justice Rehnquist always maintained that the memorandum was a reflection of Justice Jackson’s views and not his own. That assertion was hard to square with most of the available evidence.

Louis D. Brandeis: ‘A Man of Infinite Cunning’

President Woodrow Wilson’s nomination of Mr. Brandeis in 1916 faced furious opposition from much of the legal establishment. A leading progressive lawyer and the first Jew named to the Supreme Court, Justice Brandeis was described by his opponents, often with only slightly disguised anti-Semitism, as a radical.

As was the custom at the time, Mr. Brandeis did not appear at his confirmation hearings. But that did not make them any less brutal.

The president of Harvard University, where Mr. Brandeis had attended law school, opposed his nomination, as did seven former presidents of the American Bar Association. William Howard Taft, the former president and future chief justice, called him “utterly unscrupulous” and “a man of infinite cunning.”

The New York Times’s editorial page opposed the nomination. “Mr. Brandeis is essentially a contender, a striver after changes and reforms that, under our system of government, can properly be achieved only through legislation, not through the judgments of the courts,” one editorial said.

Justice Brandeis was confirmed by a vote of 47 to 22 four months after his nomination, which remains the longest a successful nominee has waited to take a seat on the Supreme Court. He went on to become, in the estimation of many of legal scholars, one of the greatest justices to serve on the Supreme Court.